Case Information
*1 Filed 1/26/17 Certified for publication 2/15/17 (order attached)
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE STATE OF CALIFORNIA JOHN DOE et al., D069411
Plaintiffs and Appellants,
v. (Super. Ct. No. 37-2015-00022295- CU-CR-CTL) STATE OF CALIFORNIA,
Defendant and Respondent. APPEAL from an order of the Superior Court of San Diego County, Timothy Taylor, Judge. Affirmed.
Casey, Gerry, Schenk, Francavilla, Blatt & Penfield; David S. Casey, Jr., Thomas D. Penfield, Jeremy Robinson and Adam Levine for Plaintiffs and Appellants.
Kamala D. Harris, Attorney General, Kristin G. Hogue, Assistant Attorney General, Richard F. Wolfe and Lisa L. Freund, Deputy Attorneys General for Defendant and Respondent.
Plaintiffs John and Jane Doe appeal from an order granting the State of California Department of Justice's1 special motion to strike under the anti-SLAPP statute (Code of Civ. Proc., § 425.16).2 In their lawsuit, the Does allege civil rights violations (Civ. Code, § 52.1 [Bane Act]), negligence, false/wrongful arrest, defamation, and loss of consortium, against the State as well as the City and County of San Diego. Over many years, State agents allegedly caused John Doe to register as a sex offender through threats of enforcement, maintained him on California's sex offender registry, and publicly disseminated his name as a registered sex offender, including via the Megan's Law Web site. In 2014, John was arrested and charged with failing to register as a sex offender. Subsequently, John allegedly determined for the first time that he was not required to register as a sex offender because his prior sex offense convictions had been reversed on appeal.
The State DOJ contends the Does' causes of action arose from protected activity
under section 425.16 and the Does did not show a probability of prevailing. We agree.
As alleged, State agents' threats to arrest/prosecute John, collection of his information,
and communications with local law enforcement and the public regarding John's status as
a registered sex offender, involved and furthered protected speech and petitioning
activity. The protected activity also involved public issues or issues of public interest.
1
The married plaintiffs sued the State of California (State) under fictitious
identities. The State Department of Justice (State DOJ) responded on the State's behalf.
2
Unless otherwise indicated, all further statutory references are to the Code of Civil
Procedure. SLAPP is an acronym for strategic lawsuit against public participation.
(
Briggs v. Eden Council for Hope & Opportunity
(1999)
FACTUAL AND PROCEDURAL BACKGROUND
State Agents Inform John of Sex Offender Registration Requirements
In 1981, John was arrested and charged with forcible rape and forcible oral copulation (Pen. Code, §§ 261, subd. (a)(2), 288a, subd. (c)). The following year, a jury convicted him of the charged offenses. In 1983, the court of appeal reversed the convictions based on jury instruction errors. Later the same year, John was released from prison, and the State DOJ allegedly informed him that he must register as a sex offender and required him to sign a registration form. In 1984, John was retried and convicted a second time by a jury of the same offenses, which he appealed. The State DOJ again allegedly informed John that he must register as a sex offender and required him to sign a registration form for a change of residence. In 1985, the court of appeal reversed John's second conviction based on the prosecution's destruction of material evidence and instructional error. On remand, the superior court granted John's unopposed motion to dismiss the information under Penal Code section 1385. John was not at the dismissal hearing and was allegedly not informed or aware the charges against him were dismissed. John's Ongoing Registration Based on State DOJ's Threats of Enforcement
In 1988, John and Jane got married, and in 1989, they moved to a permanent residence in San Diego. In January 1995, John registered with the San Diego police department (SDPD) as a sex offender, allegedly based in part on what he had been told by the State DOJ. In April 1995, the California Attorney General's office sent a letter to the SDPD, advising that John may be living in the SDPD's jurisdiction and that the SDPD should take "whatever action [it] deem[ed] necessary" to ensure registration compliance by John. The Attorney General's office enclosed a copy of John's sex offender registration form from 1983. In the years that followed, John continued to register each year around the time of his birthday, acknowledging his duty to register and to "know the registration requirements." As alleged, State agents continued to threaten prosecution and/or his arrest, maintain John's information in the sex offender registration system, and publicly disseminate John's status as a registered sex offender, all of which caused damages to him and Jane.
SDPD Arrests John, Who Determines He is Not Required to Register as a Sex Offender
In August 2014, the SDPD concluded John was in violation of his registration requirement. Officers went to the Does' home to look for him, but John was not home at the time. The next day, John went to the police station, and he was arrested, jailed, and charged with failing to register as a sex offender by SDPD and/or the San Diego County District Attorney's office. A public defender researched John's criminal records and determined that John was under no obligation to register as a sex offender, since the time when his last sex offense conviction was reversed. The court granted John's motion for a *5 finding of factual innocence and sealing and destruction of arrest records, and John's name was removed from the official sex offender registry.
Proceedings in Superior Court
In June 2015, the Does filed their complaint against the State, the County of San Diego (County), the City of San Diego (City), and "Doe" defendants. In relevant part, the complaint alleges causes of action against the State, County, and City for: (A) civil rights violations under the Bane Act (Civ. Code, § 52.1) (causes of action 6-9); (B) negligence and vicarious liability under Government Code section 815.2 (cause of action 10); (C) false and wrongful imprisonment (cause of action 11); (D) defamation per se (cause of action 12); and (E) loss of consortium (cause of action 13).
On behalf of the State, the State DOJ filed a special motion to strike under section 425.16. The State DOJ argued the complaint arose from protected activity and the Does could not prevail because: (1) the State was immune under Government Code sections 815.2 and 821.6 for claims based on threats of prosecution and investigatory activities; (2) the Does' publication-based claims were barred by the litigation privilege (Civ. Code, § 47, subd. (b)); and (3) the Does had not sufficiently alleged the required element of "threat, intimidation, or coercion" to state a Bane Act claim. Furthermore, the DOJ pointed out that the Does had not pled the State was involved in the physical act of arresting John; rather, the State's alleged involvement was in threatening prosecution and relaying sex offender information to the SDPD.
The Does opposed the motion to strike. They argued their causes of action did not
arise from protected activity because the DOJ's actions were illegal as a matter of law
under
Flatley v. Mauro
(2006)
In October 2015, the trial court heard oral argument on the State DOJ's special motion to strike. Regarding whether the causes of action arose from protected activity, the Does' counsel agreed with the court that, because the anti-SLAPP statute had been broadly construed under case law, the plaintiffs "didn't really make an opposition to [prong one]" and "there doesn't really seem to be an issue about that." Counsel further agreed the Does were "essentially, conceding Prong [One]," except they maintained the State DOJ had engaged in illegal activities. The court went on to hear arguments regarding the proper procedural way to analyze an anti-SLAPP motion and the Does' probability of prevailing on their claims. The court confirmed its tentative ruling to grant the State DOJ's special motion to strike.
The Does filed a timely notice of appeal.
DISCUSSION
A. The Anti-SLAPP Statute and Standard of Review
Under section 425.16, subdivision (b)(1), a "cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free *7 speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim."
"[A] special motion to strike under section 425.16 involves a two-step process. First, the moving defendant must make a prima facie showing 'that the act or acts of which the plaintiff complains were taken "in furtherance of the [defendant's] right of petition or free speech under the United States or California Constitution in connection with a public issue," as defined in the statute.' [Citation.] If the defendant makes this initial showing of protected activity, the burden shifts to the plaintiff at the second step to establish a probability it will prevail on the claim. [Citation.] The plaintiff need only state and substantiate a legally sufficient claim. [Citation.] The plaintiff's evidence is accepted as true; the defendant's evidence is evaluated to determine if it defeats the plaintiff's showing as a matter of law." ( City of Montebello v. Vasquez (2016) 1 Cal.5th 409, 420 ( Vasquez ).)
Subdivision (e) of section 425.16 provides that an "act in furtherance of a person's right of petition or free speech" includes "(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection *8 with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest."
We review independently whether a defendant showed a claim arose from
protected activity within the meaning of the anti-SLAPP statute and, if so, whether the
plaintiff showed a probability of prevailing on that claim. (
Soukup v. Law Offices of
Herbert Hafif
(2006)
B. The State Was Not Categorically Barred from Filing an Anti-SLAPP Motion
For the first time on appeal, the Does contend that the State, as a governmental entity, is not a "person" under section 425.16, subdivision (b)(1), and is not entitled to invoke the protection of the anti-SLAPP statute. They argue that "person" is not defined to include public entities and there is no private analogue to the State's activities.
We conclude the State, through the State DOJ, was entitled to file an anti-SLAPP
motion. Contrary to the Does' position, the statutory interpretation issue is not one of
first impression. After analyzing the statute's language and legislative history, our
Supreme Court held that "section 425.16 may not be interpreted to exclude governmental
entities and public officials from its potential protection." (
Vargas v. City of Salinas
(2009)
Moreover, numerous courts, both before and after the
Vargas
decision, have
concluded that public entities are not categorically precluded from seeking protection
under the anti-SLAPP statute. (E.g.,
Bradbury v. Superior Court of Ventura County
(1996)
We are not persuaded by the Does' argument that the anti-SLAPP statute does not
apply in this case because there is no private analogue to the State's activities. The State
DOJ notifies and informs the public of registered sex offenders. (See
Fredenburg v. City
of Fremont
(2004)
C. The Causes of Action Arose from Protected Activity
We turn to the Does' contention that the gravamen of their claims do not involve protected speech or petitioning activity. They characterize the State's injurious conduct as wrongful coercion and "forcing [John] to register" as a sex offender.
For purposes of the "prong one" analysis, we do not consider the merits of the
State agents' statements or conduct; suffice to say, the State disputes liability and
contends that its agents acted lawfully. (See
Mendoza, supra,
182 Cal.App.4th at
p. 1653;
City of Costa Mesa v. D'Alessio Investments, LLC
(2013)
We conclude the Does' causes of action arose from protected activity. The State
DOJ was not required to establish that the Does harbored an intent to chill protected
activity. (
Equilon Enterprises v. Consumer Cause, Inc.
(2002)
Additionally, category four of the anti-SLAPP statute protects "any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest." (§ 425.16, subd. (e), italics added.) The last catch-all category is not limited to the exercise of a person's right of free speech, but to all conduct in furtherance of the exercise of the right of free speech in connection with a public issue. " Furtherance means helping to advance, assisting. " ( Lieberman v. KCOP Television, Inc. (2003) 110 Cal.App.4th 156, 166.)
We have no doubt the State DOJ's alleged statements and conduct were connected
to "a public issue or an issue of public interest." The State's activities were undertaken by
public officials and public employees acting on the Attorney General's behalf. Those
State officials patently communicate a message regarding the risk that sex offenders pose
in committing further offenses after they are released from prison and the need for the
public to protect themselves. (See
Cross, supra,
We are satisfied the State properly invoked the anti-SLAPP statute because the Does' claims arose from State agents' speech and petitioning activity regarding public issues, the State did not concede that the activity was illegal, and the evidence did not conclusively establish that the activity was illegal.
D. The Does Did Not Show a Probability of Prevailing on Their Claims
When a defendant makes the threshold showing that a cause of action arises out of
the defendant's protected conduct, the anti-SLAPP statute affords the defendant the
opportunity, at the earliest stages of litigation, to have the claim stricken if the plaintiff is
unable to demonstrate both that the claim is legally sufficient and that there is sufficient
evidence to establish a prima facie case with respect to the claim. (
Taus v. Loftus
(2007)
*13
1. Civil rights violations under the Bane Act (Civ. Code, § 52.1) In causes of action 6-9 of the complaint, the Does summarily allege that State agents used "threat, intimidation, and/or coercion" when they classified him as a sex offender, compelled him to register, and threatened criminal prosecution. Their conduct allegedly violated John's constitutional rights to be free from unwarranted governmental restrictions, unjustified threats of criminal prosecution, and unjustified bodily restraint. The Does submitted as evidence the State DOJ's letters, forms, and record of John's inclusion in the sex offender registry. The Does conceded below that State agents did not physically arrest John in 2014.
Civil Code section 52.1 provides in part:
"(a) If a person or persons, whether or not acting under color of law,
interferes by threat, intimidation, or coercion
, or attempts to
interfere by threat, intimidation, or coercion, with the exercise or
enjoyment by any individual or individuals of rights secured by the
Constitution or laws of the United States, or of the rights secured by
the Constitution or laws of this state, the Attorney General, or any
district attorney or city attorney may bring a civil action for
injunctive and other appropriate equitable relief in the name of the
people of the State of California, in order to protect the peaceable
exercise or enjoyment of the right or rights secured . . . . [¶] (b) Any
individual whose exercise or enjoyment of rights secured by the
Constitution or laws of the United States, or of rights secured by the
Constitution or laws of this state, has been interfered with, or
attempted to be interfered with, as described in subdivision (a), may
institute and prosecute in his or her own name and on his or her own
behalf a civil action for damages . . . ." (Italics added.)
*14
To prevail on a cause of action under Civil Code section 52.1, the plaintiff must show
that the defendant interfered with or attempted to interfere with the plaintiff's legal right
by threatening or committing violent acts. (
Austin B. v. Escondido Union School District
(2007)
Here, assuming agents of the State DOJ threatened to arrest/prosecute John if he failed to register as a sex offender, the Does did not allege those agents engaged in independently threatening (or intimidating, coercive) conduct apart from the threats to arrest/prosecute him. Moreover, the evidence shows that John could have determined his legal duties regarding registration as a sex offender; State agents did nothing to prevent him from exercising his legal rights. Under the circumstances, the State DOJ's sharing of John's information with local law enforcement does not constitute " 'threat, intimidation, or coercion' " for purposes of Civil Code section 52.1. Accordingly, the Does have not established a probability of prevailing on their Bane Act claims.
2. Negligence, false/wrongful imprisonment, and defamation Under cause of action 10, the Does contend that State agents were negligent in maintaining the sex offender registration system, in failing to determine whether John was legally obligated to register, and essentially, in continuing to include his information in the system. Under cause of action 11, the Does contend that State agents' maintenance of the sex offender registration system resulted in John's wrongful arrest even if they did not physically arrest him.3 Finally, under cause of action 12, the Does allege that State agents defamed John by publishing his registered sex offender information.
The State argues that the Does failed to state a claim for relief because the State was immune from liability under Government Code sections 815.2 and 821.6. Specifically, the State DOJ argues that its agents were engaged in prosecutorial activities within the scope of their employment. We agree with the State that the Does failed to show a probability of prevailing on their claims.
Government Code section 821.6 provides that a "public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause." "California courts construe section 821.6 broadly in furtherance of its purpose to protect public employees in the performance of their prosecutorial duties from the threat of harassment through civil suits." ( Gillan v. City of San Marino (2007) 147 Cal.App.4th 3 The arrest and investigator's report submitted by the Does show that SDPD officers analyzed John's records and made the decision to arrest him. Thus, the State's alleged role was limited to maintaining John's registration information.
1033, 1048 (
Gillian
);
Ingram v. Flippo
(1999)
Courts have long held that acts undertaken in the course of an investigation or in
preparation for instituting a judicial proceeding cannot give rise to liability, even if no
proceeding is ultimately instituted. (E.g.,
Gillian, supra,
There is no dispute here that State agents' activities were conducted within the scope of their employment. The Does argue, however, that John's sex offense prosecutions ended in 1984 and that the agents' subsequent conduct was not immunized.
The Does' arguments are misplaced. The maintenance of a sex offender
registration system was "essential" (
Kemmerer v. County of Fresno
(1988) 200
Cal.App.3d 1426, 1436) to instituting or threatening to institute a judicial proceeding
*17
against John for failing to register as a sex offender. Indeed, if sex offender registrations
were not tracked, we are hard pressed to see how prosecutions for failing to register
would be possible. In addition, an important goal of maintaining and publishing sex
offender information is to prevent crimes and to facilitate investigations. (See
Wright v.
Superior Court
(1997)
The Does did not establish a probability of prevailing on their claims for another
reason. Fundamentally, the statutory duty to register as a sex offender or determine
whether to continue registering as a sex offender, lied with John, not the State. (
Wright,
supra,
3. Loss of consortium
Under cause of action 13, Jane alleges loss of consortium (e.g., loss of companionship and care) caused by the State's conduct toward her spouse, John. Jane would not prevail on her claim for the same reasons we have discussed.
DISPOSITION
The trial court's order granting the State's anti-SLAPP motion is affirmed. The State is awarded its costs of appeal.
BENKE, Acting P. J.
WE CONCUR:
HALLER, J.
IRION, J.
4 Because of our conclusions, we need not decide whether the Does' claims were also barred by the litigation privilege, Civil Code section 47.
Filed 2/15/17
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE STATE OF CALIFORNIA JOHN DOE et al., D069411
Plaintiffs and Appellants, (Super. Ct. No. 37-2015-00022295- CU-CR-CTL) v.
STATE OF CALIFORNIA, ORDER GRANTING
PUBLICATION Defendant and Respondent.
THE COURT:
The opinion in this case filed January 26, 2017, was not certified for publication. It appearing the opinion meets the standards for publication specified in California Rules of Court, rule 8.1105(c), respondent's request pursuant to California Rules of Court, rule 8.1120(a) for publication is GRANTED.
IT IS HEREBY CERTIFIED that the opinion meets the standards for publication specified in California Rules of Court, rule 8.1105(c); and
ORDERED that the words "Not to Be Published in the Official Reports" appearing on page one of said opinion be deleted and the opinion herein be published in the Official Reports.
BENKE, Acting P. J.
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